T-945-85
Joseph John Kindler (Petitioner)
v.
Flora MacDonald, in her capacity as Minister of
Employment and Immigration, John Crosbie, in
his capacity as Attorney General of Canada and
Simon Pérusse, in his capacity as Head of the
Adjudication Division (Quebec/Atlantic), for the
Department of Immigration of Canada, or his
representative (Respondents)
Trial Division, Rouleau J.-Montreal, May 27;
Ottawa, July 23, 1985.
Immigration - Petitioner, U.S. citizen, sentenced to death
by U.S. court - Escaping to and captured in Canada
Violation of Immigration Act, 1976 - Deportation proceed
ings undertaken - Petitioner's evidence insufficient to dis
charge onus of proving deportation order "disguised extradi
tion" - Petitioner subject to inquiry initiated under ss. 27(3)
and 104 of Immigration Act, 1976 - Under s. 27(3) Deputy
Minister to direct inquiry held where warranted - Deputy
Minister's functions administrative - Duty to act fairly
requiring petitioner be given opportunity to present special
circumstances of case - Failure by Deputy Minister to
observe principles of procedural fairness - Justice served if
petitioner given "paper hearing" - Direction under s. 27(3)
that inquiry be held null and void - Immigration Act, 1976,
S.C. 1976-77, c. 52, ss. 19(1), 23(3)(a), 27(2),(3),(4), 28, 32(6),
95(b),(k), 99, 104(2)(a),(4) - Immigration Regulations, 1978,
SOR/78-172, s. 18(1) - Criminal Code, R.S.C. 1970, c. C-34
- Extradition Act, R.S.C. 1970, c. E-21, s. 3 - Extradition
Treaty between Canada and the United States of America,
Dec. 3, 1971, [19761 Can. T.S. No. 3, Art. 6.
Constitutional law - Charter of Rights - Right to life,
liberty and security - Deportation proceedings against
American, sentenced to death by U.S. court - Threat of death
sentence and holding of inquiry under Immigration Act, 1976
impairing right to security of person - Petitioner entitled to
fundamental justice in process possibly leading to removal to
U.S. - Fundamental justice including, at minimum, proce
dural fairness - Ss. 28 and 32(6) inquiry process denying
petitioner right to be heard - Under s. 32(6) adjudicator
precluded from considering special circumstances of case on
ground petitioner person described in par. 19(1)(c),(d),(e),(f) or
(g) or 27(2)(c),(h) or (i) of Act - Petitioner entitled to declara
tion s. 32(6) exception of no force and effect in case of s. 28
inquiry - Canadian Charter of Rights and Freedoms, being
Part I of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.), ss. 1, 7, 24(1), 52(1) - Immigration
Act, 1976, S.C. 1976-77, c. 52, ss. 19(1), 23(3)(a), 27(2),(3),(4),
28, 32(6), 95(b),(k), 99, 104(2)(a),(4).
Constitutional law — Charter of Rights — Cruel and
unusual treatment or punishment — Deportation to country
where petitioner facing death penalty allegedly cruel and
unusual treatment — Allegation premature — Court cannot
assume deportation order will be made and executed and
death sentence will be upheld on appeal — Unnecessary to
consider to what extent Covenant used to determine scope of s.
12 protection — Certiorari and prohibition granted barring
holding of inquiry under Immigration Act, 1976 -- Canadian
Charter of Rights and Freedoms, being Part I of the Constitu
tion Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11
(U.K.), s. 12 — International Covenant on Civil and Political
Rights, Dec. 19, 1966, 119761 Can. T.S. No. 47, art. 2.
This is an application to prohibit the holding of an inquiry
under section 28 et seq. of the Immigration Act, 1976. The
petitioner, an American citizen, was convicted of first-degree
murder by a jury in Pennsylvania which recommended a sen
tence of death. Prior to the formal pronouncement of sentence,
he escaped to Canada but was captured by the R.C.M.P. He
appeared before a magistrate and was charged with three
separate offences under the Immigration Act, 1976. He
received notice that proceedings were being undertaken to
deport him from Canada. No formal request for extradition
was made by American authorities to the Canadian
government.
Held, the petitioner is entitled to a writ of certiorari setting
aside the direction of the Deputy Minister that an inquiry be
held; a writ of prohibition barring the holding of an inquiry
until the discretion of the Deputy Minister has been exercised
in accordance with the principles of procedural fairness; and a
declaration that the words "other than a person described in
paragraph 19(1)(c), (d), (e), (/) or (g) or 27(2)(c), (h) or (i)"
in subsection 32(6) of the Act do not apply in connection with
an inquiry instituted under section 28 of the Act.
I. Whether the inquiry proceedings herein are in fact a "dis-
guised extradition"
The law relating to "disguised extradition" was set out by
Lord Denning in Regina v. Governor of Brixton Prison, Ex
parte Soblen, [1963] 2 Q.B. 243 (C.A.). The decision as to
whether deportation or extradition applied was seen by Lord
Denning as depending "on the purpose with which the act is
done". In Moore v. Minister of Manpower and Immigration,
[1968] S.C.R. 839, Cartwright C.J. agreed with Stephenson J.
in the Soblen case that the onus of proving that a deportation
order, valid on its face, was in fact a sham, or not made bona
fide, rested with the party making such an allegation "however
difficult it may be to discharge that onus".
The evidence at bar is not sufficient to discharge that onus.
There were reasonable grounds for the immigration authorities
to conclude that the petitioner's presence in Canada would not
be conducive to the public good. Had the petitioner been able to
show that the real purpose of the deportation proceedings was
to surrender him to a foreign state as a fugitive criminal, the
Court would have restrained such an abuse of the power to
deport. The general discretionary power to deport aliens cannot
be utilized to replace the special procedure enacted by Parlia
ment in the Extradition Act for the surrender of fugitive
criminals.
11. Whether the petitioner was entitled to an oral hearing
before institution of the inquiry
The Immigration Act, 1976 provides for two different meth
ods of initiating an inquiry. Section 104 prescribes that a
person may be arrested and detained, with or without warrant.
Where a person is being held in detention pursuant to section
104, a senior immigration officer must, in accordance with
section 28, forthwith cause an inquiry to be held. The second
method is set out in subsection 27(3). Pursuant to that subsec
tion, the Deputy Minister shall, on receiving a report prepared
under subsection 27(1) or (2) and where he considers that an
inquiry is warranted, direct that such an inquiry be held. On
receiving the direction a senior immigration officer has a duty,
under subsection 27(4), to cause an inquiry to be held. It must
be noted that according to subsection 27(2), a report need not
be prepared where the person is detained pursuant to section
104, as is the case with the petitioner. Such a report was
nevertheless prepared and submitted to the Deputy Minister
since the petitioner was also charged with being in a class of
persons not covered by paragraph 104(2)(a).
The petitioner maintains that were he granted an opportunity
to be heard by the Deputy Minister as to the threat which a
deportation order represents to his right to life, the inquiry
stage could be avoided since the Deputy Minister is not bound,
under subsection 27(3), to issue a direction requiring an inquiry
to be held.
The functions exercised by the Deputy Minister under sub
section 27(3) are administrative in nature and, in exercising the
discretion conferred on him by that provision, the Deputy
Minister has a duty to act fairly. This duty of fairness requires
that the petitioner be given the opportunity to bring to the
attention of the Deputy Minister, who has the necessary au
thority to terminate the proceedings filed against the petitioner,
the special circumstances of his case. A trial-type hearing at
this stage of the proceedings cannot be justified in view of the
administrative inconvenience that would create. However, the
ends of justice would be well served if the petitioner could be
given a "paper hearing" by the Deputy Minister as to the
threat to his right to life.
Since the Deputy Minister has not observed the principles of
procedural fairness in exercising his discretion, the direction
that an inquiry be held is null and void.
III. Whether the inquiry held pursuant to the Immigration
Act, 1976 contravenes the rights guaranteed under section
7 of the Charter
The petitioner argues that the inquiry process is an impair
ment of his right to life, liberty and security of the person and
that this impairment constitutes a deprivation contrary to the
principles of fundamental justice. The Crown, relying on the
Federal Court of Appeal decision in Singh v. Minister of
Employment and Immigration, [1983] 2 F.C. 347, argues that
there is no impairment of the petitioner's rights since any
impairment would result from a decision of a foreign tribunal,
not from a decision "by Canadian authorities applying Canadi-
an laws". In Singh et al. v. Minister of Employment and
Immigration, [1985] 1 S.C.R. 177, where the physical threat
was in India, Wilson J., held that the appellants' section 7
rights had been infringed. Since Wilson J.'s position is at odds
with that adopted by the Federal Court of Appeal, it must be
considered as strongly implying that the latter's opinion on that
point can no longer be considered good law.
The "single right" theory articulated by Marceau J. in R. v.
Operation Dismantle Inc., [1983] 1 F.C. 745 (C.A.) to the
effect that the words "right to life, liberty and security of the
person" form a single right with closely inter-related parts, was
discussed by Wilson J. in the Singh case. According to Wilson
J. that theory does not suggest that there must be a deprivation
of all three elements. A deprivation of the "security of the
person" would constitute a deprivation of the "right" under s.
7. Wilson J. also stated that "security of the person" encom
passed "freedom from the threat of physical punishment ... as
well as freedom from such punishment". In the case at bar, the
inquiry itself represents an impairment of the petitioner's right
to security of the person. Given the potential consequence of
the petitioner's removal to the United States, it would be
unthinkable that the Charter would not apply to entitle him to
fundamental justice in the process which might lead to such
removal.
At the minimum, the concept of fundamental justice as it
appears in the Charter includes the notion of procedural fair
ness as expounded by Fauteux C.J. in Duke v. The Queen,
[1972] S.C.R. 917. Under subsection 32(6), the adjudicator is
precluded from considering the special circumstances of the
petitioner's case, the petitioner not coming within the exception
of subsection 32(6), i.e. not being a person "other than a person
described in paragraph 19(1)(c), (d), (e), (/) or (g) or 27(2)(c),
(h) or (i)". Similarly, the senior immigration officer, acting
under section 28, has no authority to consider any other
circumstance. As the inquiry procedure now stands, the peti
tioner is denied an adequate opportunity to state his case, and,
as such, is denied fundamental justice in the determination as
to whether or not he should be deported.
Sections 28 and 32(6) of the Act operate together to deny the
petitioner the right to be heard as required by the principles of
fundamental justice. However, if the exception contained in
subsection 32(6) were of no effect, then the petitioner would no
longer be denied his right. Therefore, since this Court is the
court of competent jurisdiction in this matter pursuant to
subsection 24(1) of the Charter, and since declaratory relief
represents an appropriate remedy in the present circumstances,
the petitioner is entitled to a declaration that the words "other
than a person described in paragraph 19(1)(c), (d), (e), (/) or
(g) or 27(2)(c), (h) or (i)" in subsection 32(6) are of no force
and effect in the case of an inquiry caused to be held pursuant
to section 28 of the Act.
With respect to section 1 of the Charter, the Crown has
failed to demonstrate that the procedures set out in the Act
constitute reasonable limits which can be demonstrably justi
fied in a free and democratic society.
IV. Whether the deportation of the petitioner to a country
where he faces the death penalty constitutes cruel and
unusual treatment or punishment within the meaning of
section 12 of the Charter
The petitioner argues that it would be cruel and unusual
treatment to deport him to a country where he faces a punish
ment which is cruel and unusual.
The petitioner's argument is premature. The Court cannot
assume (1) that a deportation order will be made, (2) that such
order will be executed towards the United States, and (3) that
the death sentence to be imposed by the trial judge will be
upheld on appeal in the American courts.
The petitioner's submission may be properly considered if a
deportation order is in fact issued.
V. Impact of Canada's international treaty obligations on its
domestic law
The petitioner referred to the United Nations International
Covenant on Civil and Political Rights to support his argu
ments. Although Canada acceded to the Covenant in 1976, no
Canadian legislation has been passed expressly implementing
the Covenant. The Covenant, as a source of domestic legal
rights, is therefore limited. It can nevertheless be used to assist
a court in the interpretation of ambiguous provisions of a
domestic statute provided that the latter does not contain any
express provisions contrary to the Covenant.
In view of the finding that the submission with respect to
section 12 of the Charter is premature, it is unnecessary to
consider to what extent, if any, the Covenant can be used to
determine the scope of the protection afforded by section 12.
CASES JUDICIALLY CONSIDERED
FOLLOWED:
Moore v. Minister of Manpower and Immigration,
[1968] S.C.R. 839; 69 D.L.R. (2d) 273; Potter v. Minis
ter of Employment and Immigration, [1980] 1 F.C. 609
(C.A.); Singh et al. v. Minister of Employment and
Immigration, [1985] 1 S.C.R. 177; 58 N.R. 1.
APPLIED:
Regina v. Governor of Brixton Prison, Ex parte Soblen,
[1963] 2 Q.B. 243 (C.A.); Pear/berg v. Varty, [1972] 1
W.L.R. 534 (H.L.); Selvarajan v. Race Relations Board,
[1976] 1 All ER 12 (C.A.).
NOT FOLLOWED:
Singh v. Minister of Employment and Immigration,
[1983] 2 F.C. 347 (C.A.).
CONSIDERED:
Inuit Tapirisat of Canada v. The Right Honourable
Jules Léger, [1979] 1 F.C. 710 (C.A.), reversed sub nom.
Attorney General of Canada v. Inuit Tapirisat of Canada
et al., [1980] 2 S.C.R. 735; Schmidt v. Secretary of State
for Home Affairs, [1969] 2 Ch. 149 (C.A.); Nicholson v.
Haldimand-Norfolk Regional Board of Commissioners
of Police, [1979] 1 S.C.R. 311; R. v. Operation Disman
tle Inc., [1983] 1 F.C. 745 (C.A.); Duke v. The Queen,
[1972] S.C.R. 917; Operation Dismantle Inc. et al. v.
The Queen et al., [1985] 1 S.C.R. 441.
REFERRED TO:
Rex v. Leman Street Police Station Inspector. Ex parte
Venicoff, [1920] 3 K.B. 72; Ridge v. Baldwin, [1964]
A.C. 40 (H.L.); Hunter et al. v. Southam Inc., [1984] 2
S.C.R. 145; 55 N.R. 241; In re Gittens, [1983] 1 F.C.
152 (T.D.).
COUNSEL:
Ann-Marie Jones, Julius Grey, Irwin Cotler
for petitioner.
Suzanne Marcoux-Paquette for respondents.
SOLICITORS:
Ann-Marie Jones, Julius Grey, Irwin Cotler,
Montreal, for petitioner.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for order ren
dered by*
ROULEAU J.: This application for a writ of
prohibition or any other relief of this nature to
prohibit the holding of an inquiry under sections
28 et seq. of the Immigration Act, 1976, S.C.
1976-77, c. 52, was heard on May 29, 1985 at
Montreal, Quebec. Since both the written and oral
pleadings were presented in both official lan-
* Editors' Note: His Lordship's reasons for order were ren
dered partly in English and partly in French but are published
in the customary bilingual format of the Canada Federal Court
Reports.
guages, I propose to maintan this dualism by
writing bilingual reasons.
A brief review of the facts is necessary.
Mr. Joseph John Kindler, a U.S. citizen, was
convicted of first-degree murder, unlawful
restraint and conspiracy to commit murder by a
jury in the State of Pennsylvania. The jury recom
mended the death sentence for the charge of first-
degree murder. On September 19, 1984 Mr. Kin-
dler escaped from the Philadelphia Detention
Center before the death sentence was formally
pronounced and fled to the Laurentian north of
Montreal. He was captured on April 26, 1985 at
Ste -Adèle, Quebec by the Royal Canadian Mount
ed Police (R.C.M.P.).
In all fairness to the argument which the peti
tioner makes below, it is worth noting that before
his arrest two Federal Bureau of Investigation
(F.B.I.) officers went to the St -Jérôme detachment
to request the R.C.M.P.'s assistance in locating
Mr. Kindler. An F.B.I. agent even remained in
Canada between April 12 and 16, 1985 to attempt
to locate Mr. Kindler. On April 19, 1985 one of
the F.B.I. agents returned to St -Jérôme accom
panied by the petitioners' brother-in-law to discov
er where the latter was living.
On April 26, 1985 Mr. Kindler appeared before
the Court of Sessions of the Peace at St -Jérôme to
answer various charges under the Immigration
Act, 1976. He was charged, inter alia, with re
maining in Canada without the written authority
of an immigration officer, contrary to the provi
sions of paragraph 95(k) of the Act; not being a
Canadian citizen or a permanent resident, working
in Canada without a work permit contrary to
subsection 18(1) of the Regulations [Immigration
Regulations, 1978, SOR/78-1721, thereby com
mitting an offence pursuant to section 99 of the
Act; and with coming into Canada or remaining
therein by use of a false or improperly obtained
passport, visa or other document pertaining to his
admission or by reason of any fraudulent or
improper means or misrepresentation of any ma
terial fact, contrary to paragraph 95(b) of the Act.
A host of other charges under the Criminal Code
[R.S.C. 1970, c. C-34] were also laid against the
petitioner, but I will not mention them here.
The issues raised by this case are complex and
very important. This is my adaptation of the issues
that were framed in respondents' memorandum.
Question I
Are the inquiry proceedings instituted against
the petitioner in fact a "disguised extradition"?
Question II
Did the petitioner have the right to an oral
hearing before the institution of the inquiry?
Question III
Does an inquiry held pursuant to the Immigra
tion Act, 1976 violate the rights conferred to the
petitioner by section 7 of the Canadian Charter
of Rights and Freedoms [being Part I of the
Constitution Act, 1982, Schedule B, Canada
Act 1982, 1982, c. 11 (U.K.)]?
Question IV
Would it be cruel and unusual treatment or
punishment to deport the petitioner to a country
where he faces the death penalty?
Question V
What are the implications of Canada's interna
tional obligations on its domestic laws?
Question I
Are the inquiry proceedings in fact a "disguised
extradition"?
The petitioner claims that the inquiry process
which has been instituted in his regard, pursuant
to the Immigration Act, 1976 is, in reality, an
attempt to effect his "disguised extradition" to the
United States. He also claims that the Canadian
authorities chose to institute deportation proceed
ings against him in order to deprive him of the
benefit of Article 6 of the Extradition Treaty
between Canada and the United States of America
[Dec. 3, 1971, [1976] Can. T.S. No. 3]. Article 6
reads as follows:
ARTICLE 6
When the offense for which extradition is requested is pun
ishable by death under the laws of the requesting State and the
laws of the requested State do not permit such punishment for
that offense, extradition may be refused unless the requesting
State provides such assurances as the requested State considers
sufficient that the death penalty shall not be imposed, or, if
imposed, shall not be executed.
The terms of the Treaty are incorporated into
Canadian domestic law by section 3 of the Extra
dition Act, R.S.C. 1970, c. E-21. Murder is pun
ishable by death under the laws of Pennsylvania.
Since 1976, the death penalty for murder has been
abolished in Canada. In effect, the petitioner seeks
to have the deportation proceedings prohibited so
as to force the U.S. authorities to seek his return
by way of extradition under the Act, thus giving
him the benefit of Article 6 and possibly resulting
in the prevention of the execution of any sentence
of death imposed by the Court in Pennsylvania.
In theory, there should be no confusion between
extradition and deportation. They are clearly dis
tinct in purpose. As was noted by G. V. La Forest
(now Mr. Justice La Forest of the Supreme Court
of Canada) in Extradition To and From Canada,
2nd ed., Toronto, Canada Law Book Limited,
1977, at page 38:
The object of extradition is to return a fugitive offender to the
country which has requested him for trial or punishment for an
offence committed within its jurisdiction. Deportation, on the
other hand, is governed by the public policy of the state that
wishes to dispose of an undesirable alien. In this respect the
deporting state has little preference where the deportee goes as
long as he is outside its own territorial boundaries. The Immi
gration Act [subsection 33(1)], however, provides that a person
against whom a deportation order has been issued shall be
deported to the place from which he came to Canada or to the
country of which he is a national or citizen or to the country of
his birth, or to such country as may be approved by the
Minister.
Where the destination selected is one in which the
authorities are anxious to prosecute or punish the
deportee for a criminal offence, the deportation
may result in a de facto extradition. However,
where deportation is ordered to the State of
embarkation or the national State, the description
"disguised extradition" is really a conclusion
drawn by those who assert it as being the intent of
the deporting authorities. While the motive of
restoring a criminal to a competent jurisdiction
may indeed be paramount in the intention of the
deporting State, it may also in many cases be a
genuine coincidence that deportation has this
result. (See Ivan A. Shearer, Extradition in Inter
national Law, Manchester, 1971, Manchester Uni
versity Press.)
The law prevailing in cases in which it is alleged
that deportation proceedings are being used as a
mean of achieving a disguised extradition was
admirably set out by Lord Denning M.R., in
Regina v. Governor of Brixton Prison, Ex parte
Soblen, [1963] 2 Q.B. 243 (C.A.). Lord Denning
began by noting that "the law of extradition is one
thing; the law of deportation is another" (page
299). He then stated (at page 300):
It is unlawful, therefore, for the Crown to surrender a fugitive
criminal to a foreign country unless it is warranted by an
extradition treaty with that country.
However, Lord Denning also noted at pages
300-301 that the law of deportation formed
"another side to the picture" and, that, by interna
tional law:
... any country is entitled to expel an alien if his presence is for
any reason obnoxious to it ....
This power to deport would not be taken away by
the fact that the deportee was a fugitive from
justice in his own country or even by the fact that
his own country wanted him back and made a
request for him (ibid., pages 302-303).
The decision as to which of these principles,
deportation or extradition, was applicable was seen
by Lord Denning (at page 302) as depending
... on the purpose with which the act is done. If it was done for
an authorised purpose, it was lawful. If it was done professedly
for an authorised purpose, but in fact for a different purpose
with an ulterior object, it was unlawful.
He continued (at page 302):
If, therefore, the purpose of the Home Secretary in this case
was to surrender the applicant as a fugitive criminal to the
United States of America because they had asked for him, then
it would be unlawful. But if the Home Secretary's purpose was
to deport him to his own country because the Home Secretary
considered his presence here to be not conducive to the public
good, then the Home Secretary's action is lawful. It is open to
these courts to inquire whether the purpose of the Home
Secretary was a lawful or an unlawful purpose. Was there a
misuse of the power or not? The courts can always go behind
the face of the deportation order in order to see whether the
powers entrusted by Parliament have been exercised lawfully or
no. That follows from Reg. v. Board of Control, Ex parte Rutty
([1956] 2 Q.B. 109).
Then how does it rest in this case? ... [I]f there is evidence
on which it could reasonably be supposed that the Home
Secretary was using the power of deportation for an ulterior
purpose, then the court can call on the Home Secretary for an
answer: and if he fails to give it, it can upset his order. But on
the facts of this case I can find no such evidence. It seems to me
that there was reasonable ground on which the Home Secretary
could consider that the applicant's presence here was not
conducive to the public good.
As Lord Donovan noted in his concurring judg
ment (at pages 307-308):
The task of the subject who seeks to establish such an
allegation as this is indeed heavy.
The issue of deportation as "disguised extradi
tion" came before the Supreme Court of Canada
in Moore v. Minister of Manpower and Immigra
tion, [1968] S.C.R. 839; 69 D.L.R. (2d) 273. In
that case Moore, who had previously been deport
ed from Canada because he had a serious criminal
record in the United States, entered Canada from
Panama by air. He carried a Canadian passport
indicating that he had been born in Canada and
was a Canadian citizen whereas he was born in the
United States and was a citizen of that country.
Two days after his entry he was waiting to board
an aircraft to return to Panama when he was
arrested. An inquiry was ordered under the Immi
gration Act and Moore was ordered deported.
Although the order did not specify the country to
which he was to be deported, the Court agreed to
assume that his destination was to be the United
States. Moore argued that he was the subject of an
exercise of the power to deport for the purpose of
extradition and that this constituted an abuse
which should be restrained by the Court.
Moore was unsuccessful. In his reasons, Cart-
wright C.J., stated that he agreed with the view
expressed by Stephenson J. in Soblen, supra, that
the onus of proving that a deportation order, valid
on its face, is in fact a sham, or not made bona
fide, is on the party who alleges it, "however
difficult it may be for him to discharge that onus"
(at page 843 S.C.R.; page 275 D.L.R.). He then
continued (at page 844 S.C.R.; pages 275-276
D.L.R.):
To decide that the deportation proceedings are a sham or not
bona fide it would be necessary to hold that the Minister did
not genuinely consider it in the public interest to expel the
appellant. This is the view expressed in Soblen's case, supra,
and I agree with it.
As there were good reasons for expelling Moore,
the appeal was dismissed. In so doing, however,
Chief Justice Cartwright was careful to note (at
page 844 S.C.R.; page 276 D.L.R.):
I wish to guard myself against being supposed to say that if
the facts were found to be as suggested by Mr. Chernos
[counsel for the appellant] the Courts would be powerless to
intervene and to declare that an act having the appearance of
being done under the authority of the Immigration Act and in
accordance with its provisions is ultra vires because in reality
done for a purpose other than that specified by the Statute.
It was argued, by counsel for the petitioner, that
Soblen, supra, can no longer be considered to be
good law, as the Court of Appeal based its view of
administrative law on an old case, Rex v. Leman
Street Police Station Inspector. Ex parte Venicoff,
[1920] 3 K.B. 72, which basically excluded the
concept of "fairness" from British immigration
law. He argued that some two years after the
decision in Soblen, the House of Lord's decision in
Ridge v. Baldwin, [1964] A.C. 40, fundamentally
changed administrative law and, thereafter, British
and Canadian courts ceased to rely on cases such
as Venicoff. It must be noted, however, that the
Court of Appeal only discussed Venicoff with
respect to one of the grounds of appeal in Soblen,
namely whether or not a person affected by a
deportation order had a right to be heard before
the order was made; that case formed no part of
the Court's discussion of the law relating to "dis-
guised extradition", a totally separate point of
appeal. As such, even if the continued validity of
decision of the Court as to the former may be
questioned, no such doubt exists with respect to its
decision as to the latter. Even if it were otherwise,
counsel's argument overlooks the fact that the
Supreme Court's decision in Moore, which sub
stantially adopted the reasoning of Soblen with
respect to the law of "disguised extradition", fol
lowed the decision in Ridge v. Baldwin by several
years and it cannot be challenged on that ground.
Counsel also sought to distinguish Soblen and
Moore on the grounds that the Courts in those
cases did not have to consider the effect of the
Canadian Charter of Rights and Freedoms on the
law in this area, and also because in the present
case there is the additional factor of the impending
imposition of a death sentence on the deportee by
the courts of the country of his probable, but not
certain, destination. Once again, however, I must
disagree. It has not been demonstrated to me that
the law with respect to "disguised extraditions", as
enunciated in those two cases, has been changed
by the introduction of the Charter. While the
severity of the penalty awaiting the deportee in the
country to which he may be deported may be a
relevant consideration in another context (e.g. sec
tion 12 of the Charter), it does not serve to lessen
the onus resting upon those who allege that depor
tation proceedings, valid on their faces, are in fact
shams.
As such, I find that the statement of the Courts
in Soblen and Moore as to "disguised extradition"
continue to be good law. My task is therefore to
apply that law to the facts of the present case.
The arrest of the petitioner on April 26, 1985,
was effected by officers of the General Inquiries
Section of the Royal Canadian Mounted Police.
The R.C.M.P. had earlier been alerted by agents
of the United States Federal Bureau of Investiga
tion as to the presence of the petitioner on Canadi-
an territory, and members of both forces acted in
collaboration in pinpointing his exact location.
After the arrest, officers of the Immigration Sec
tion of the R.C.M.P. took over the petitioner's case
and he was brought before a magistrate and
charged with three separate offences under the
Immigration Act, 1976. On April 29, 1985, he
received notice that proceedings had been under
taken under the Immigration Act, 1976 with a
view to deporting him from Canada. At no time,
however, has the United States government ever
made a formal request to the Canadian govern
ment for the extradition of the petitioner (at the
date of this application).
The proceedings taken under the Immigration
Act, 1976 are valid on their face and I do not
believe the evidence is sufficient to discharge the
heavy onus on the petitioner when he challenges
these proceedings as a sham aimed at achieving an
unlawful purpose. There were reasonable grounds
for the immigration authorities to conclude that
the petitioner's continued presence in Canada
would not be conducive to the public good. The
mere facts that the R.C.M.P. was unaware of the
petitioner's illegal presence in Canada until alerted
by the F.B.I., and that both forces cooperated in
locating him, and that the arrest was carried out
by members of the General Inquiries Section and
not members of the Immigration Branch, are not
sufficient to prove that the Minister did not genu
inely consider it in the public interest to order his
deportation. This challenge to the validity of the
deportation proceedings must fail.
However, I should add that if the petitioner had
been able to show that the real purpose of the
deportation proceedings was to surrender him to a
foreign state because he is a fugitive criminal
sought by such foreign state, this would have been
an abuse of the power to deport and as such would
have been restrained by the Court. Parliament has
set up, in the Extradition Act, a special procedure
for the surrender of fugitive criminals and the
general discretionary power to deport aliens cannot
be utilized to replace this special procedure. Gen-
eralia specialibus non derogant.
Question II
Did the petitioner have the right to an oral hear
ing before institution of the inquiry?
To answer this question, I must first examine in
minute detail the possible ways in which an inqui
ry may be instituted. There are under the Immi
gration Act, 1976 two quite different ways of
initiating the inquiry procedure in relation to a
person who is already in Canada: an arrest with or
without warrant under section 104 of the Act and
the written report and direction that an inquiry
shall be held under subsection 27(3) of the same
Act.
(1) Arrest with or without a warrant under sec
tion 104 of the Act
Where an immigration officer or, as in the case
at bar, a peace officer has been given information
that a person in Canada is a person who, on
reasonable grounds, is suspected of belonging to
one of the classes of person specified in paragraph
27(2)(b),(e),(),(g),(h),(i) or (j), he may arrest
him if he considers that the person poses a danger
to the public. This is the essence of paragraph
104(2)(a), under which the applicant was arrested
and is being detained:
104....
(2) Every peace officer in Canada, whether appointed under
the laws of Canada or of any province or municipality thereof,
and every immigration officer may, without the issue of a
warrant, an order or a direction for arrest or detention, arrest
and detain or arrest and make an order to detain
(a) for an inquiry, any person who on reasonable grounds is
suspected of being a person referred to in paragraph
2 7(2)(b), (e), (i), (g), (h), (j) or (j), or
where, in his opinion, the person poses a danger to the public or
would not otherwise appear for the inquiry or for removal from
Canada.
After making the arrest, the peace officer must
immediately notify a senior immigration officer of
the detention and the reasons therefor, as provided
by subsection 104(4):
104....
(4) Where any person is detained for an examination or
inquiry pursuant to this section, the person who detains or
orders the detention of that person shall forthwith notify a
senior immigration officer of the detention and the reasons
therefor.
That is what was done in the case at bar.
On learning of such an arrest and detention, the
senior immigration officer had an obligation and
duty to order that an inquiry be held under section
28:
28. Where a person is held in detention pursuant to para
graph 23(3)(a) or section 104 for an inquiry, a senior immigra
tion officer shall forthwith cause the inquiry to be held concern
ing that person.
Detention pursuant to section 104 accordingly suf
fices to initiate an inquiry proceeding and it is not
in any way necessary, as provided by subsection
27(3), for a written report to be prepared or a
direction to be given by the Deputy Minister in
order for an inquiry to be held. A notice of deten
tion under section 104 and a notice of inquiry
issued by a senior immigration officer will suffice.
That is the first step leading to an inquiry. The
second is specified in subsection 27(3) of the Act.
(2) Written report and direction that an inquiry
shall be held under subsection 27(3) of the
Act
Any immigration officer or peace officer who
has in his possession information indicating that a
person in Canada is suspected of being in one of
the classes specified by paragraph 27(2)(a),(b),
(c),(d),(e),(J),(g),(h),(i),(j),(k) or (l) must make a
written report to the Deputy Minister, unless the
person in question has been arrested without a
warrant and detained under section 104 (as in the
case of the applicant).
27....
(2) Where an immigration officer or peace officer has in his
possession information indicating that a person in Canada,
other than a Canadian citizen or a permanent resident, is a
person who
(a) if he were applying for entry, would not or might not be
granted entry by reason of his being a member of an
inadmissible class other than an inadmissible class described
in paragraph 19(1)(h) or 19(2)(c),
(b) has engaged or continued in employment in Canada
contrary to this Act or the regulations,
(c) is engaged in or instigating subversion by force of any
government,
(d) has been convicted of an offence under the Criminal
Code or of an offence that may be punishable by way of
indictment under any Act of Parliament other than the
Criminal Code or this Act,
(e) entered Canada as a visitor and remains therein after he
has ceased to be a visitor,
(/) came into Canada at any place other than a port of entry
and failed to report forthwith to an immigration officer or
eluded examination or inquiry under this Act or escaped
from lawful custody or detention under this Act,
(g) came into Canada or remains therein with a false or
improperly obtained passport, visa or other document per
taining to his admission or by reason of any fraudulent or
improper means or misrepresentation of any material fact,
whether exercised or made by himself or by any other person,
(h) came into Canada contrary to section 57,
(i) has not left Canada on or before the date specified in a
departure notice that was issued to him or, having so left
Canada, has been allowed to come into Canada pursuant to
paragraph 14(1)(c),
(j) came into Canada as or to become a member of a crew
and, without the approval of an immigration officer, failed to
be on the vehicle when it left a port of entry,
(k) was authorized pursuant to paragraph 14(2)(b), 23(1)(b)
or 32(3)(b) to come into Canada and failed to present
himself for further examination within such time and at such
place as was directed, or
(1) wilfully fails to support any dependent member of his
family in Canada,
he shall forward a written report to the Deputy Minister setting
out the details of such information unless that person has been
arrested without warrant and held in detention pursuant to
section 104.
It is clear that under subsection 27(2), the peace
officer or immigration officer had no obligation to
submit a report to the Deputy Minister. A report
was submitted to the Deputy Minister in the case
at bar nevertheless, since the petitioner was also
charged with being in the class of persons
described in paragraphs 19(1)(c) and 27(2)(a) of
the Act. This class of persons is not covered by
paragraph 104(2)(a), which explains why it was
necessary to use two proceedings to institute the
inquiry.
The Deputy Minister, who now had a report
prepared pursuant to subsection 27(2) before him,
considered that an inquiry was necessary. He
therefore sent a copy of the report to a senior
immigration officer and a direction that an inquiry
be held, pursuant to subsection 27(3):
27....
(3) Subject to any order or direction of the Minister, the
Deputy Minister shall, on receiving a report pursuant to subsec
tion (1) or (2), and where he considers that an inquiry is
warranted, forward a copy of that report and a direction that
an inquiry be held to a senior immigration officer.
On receipt of the direction specified in subsection
27(3), the senior immigration officer had no
choice but to cause an inquiry to be held into the
person in question, as provided in subsection 27(4):
27....
(4) Where a senior immigration officer receives a copy of a
report and a direction pursuant to subsection (3), he shall, as
soon as reasonably practicable, cause an inquiry to be held
concerning the person with respect to whom the report was
made.
Having reviewed the proceedings leading up to
the inquiry, we now turn to the stage of the inquiry
itself. However, before dealing with the inquiry as
such, I should say that I entirely concur in the
view of counsel for the respondents, that the pro
ceedings preliminary to the inquiry to be held
concerning the petitioner were complied with in
every detail and the adjudicator who may or will
preside over the inquiry derives his jurisdiction
from two sources:
—the arrest of the applicant without a warrant
pursuant to paragraph 104(2)(a) of the Act in
respect of the allegations described in para
graphs 27(2)(6),(e) and (g) of the said Act;
and
—the direction to hold an inquiry pursuant to
subsections 27(3) and (4) of the Act in
respect of the allegations described in para
graphs 19(1)(c) and 27(2)(a) of the said Act.
The fact that two different methods of initiating
the inquiry proceeding have thus been combined
before the same adjudicator does not constitute an
irregularity. The Federal Court of Appeal had to
rule on precisely this point in Potter v. Minister of
Employment and Immigration, [ 1980] 1 F.C. 609,
at pages 612 and 613:
An inquiry was convened on 6 September 1979 at Vancou-
ver. It was convened pursuant both to the direction, dated 30
August 1979, directing an inquiry to determine whether Mr.
Potter was a person described in paragraph 27(2)(a) of the Act,
and to the notice of inquiry, dated 31 August 1979, causing an
inquiry to be held pursuant to section 28.
Counsel for Mr. Potter took the position at the opening of the
inquiry that the Adjudicator had no jurisdiction to deal with
anything other than the matter embraced in the direction to
hold an inquiry to determine if Mr. Potter was a person
described in paragraph 27(2)(a) of the Act. The Adjudicator
decided the issue in these words:
The person concerned, according to the documents before
me, was arrested pursuant to subsection 104(2) of the Immi
gration Act on the 28th of August 1979 and the Immigration
Act clearly requires when a person is described pursuant to
subsection 104(2) that an inquiry be held. Following that, a
Direction for Inquiry was issued. I find absolutely nothing
wrong with this procedure and it is my ruling at this time
that I have the jurisdiction by reason of the arrest under
104(2) to consider whether Mr. Potter is a person described
in 27(2)(b) and 27(2)(e) of the Immigration Act and I also
have the jurisdiction to consider whether he is a person
described in paragraph 27(2)(a) of the Immigration Act by
reason of the fact that the Direction for Inquiry has been
issued requiring me to consider this matter.
I am of opinion that the Adjudicator did not err in deciding
to proceed as he did.
(3) The inquiry itself
In an inquiry concerning a person who is not a
permanent resident, and adjudicator must either
decide he is to be deported or issue a departure
notice under subsection 32(6) of the Act:
32....
(6) Where an adjudicator decides that a person who is the
subject of an inquiry is a person described in subsection 27(2),
he shall, subject to subsections 45(1) and 47(3), make a
deportation order against the person unless, in the case of a
person other than a person described in paragraph 19(1)(c),
(d), (e), (/) or (g) or 27(2)(c), (h ) or (i), he is satisfied that
(a) having regard to all the circumstances of the case, a
deportation order ought not to be made against the person,
and
(b) the person will leave Canada on or before a date specified
by the adjudicator,
in which case he shall issue a departure notice to the person
specifying therein the date on or before which the person is
required to leave Canada.
In the case at bar, if the adjudicator was persuad
ed that the petitioner fell within subsection 27(2),
he had to issue a deportation order.
At this stage it can clearly be seen that the
adjudicator's jurisdiction is limited, namely that
the petitioner could not present the special "cir-
cumstances" of his case. In short, the threat which
a deportation order represented to his right to life
could in no way affect the adjudicator's decision.
The latter had to consider only whether the peti
tioner fell within one of the paragraphs of subsec
tion 27(2). If he did, the adjudicator had to order
that he be deported.
(4) Did the Deputy Minister have a duty to act
fairly in exercising the discretion conferred on
him by subsection 27(3)?
The petitioner's position is essentially as follows:
the Deputy Minister responsible for deciding
whether an inquiry must be held under subsection
27(3) must allow the petitioner to be heard in
accordance with the principles of fairness dis-
cussed in Nicholson v. Haldimand-Norfolk
Regional Board of Commissioners of Police,
[1979] 1 S.C.R. 311.
The petitioner maintained that if he had an
opportunity to be heard by the Deputy Minister
and to mention the threat which a deportation
order represented to his right to life, the inquiry
stage could simply be avoided, since the Deputy
Minister was not bound to issue - a direction requir
ing a senior immigration officer to cause an inqui
ry to be held.
The petitioner further argued that section 7 of
the Canadian Charter of Rights and Freedoms
(being Part I of the Constitution Act, 1982,
Schedule B, Canada Act 1982, 1982, c. 11 (U.K.))
has added to the common law principles of fairness
a right to "fundamental justice" when the
individual's rights "to life" and "security of the
person" are threatened. The application of section
7 of the Charter to the case at bar will be the
subject of a separate comment and will be dealt
with at the same time as the holding of an inquiry
under section 28 of the Act.
I again reproduce subsection 27(3):
27....
(3) Subject to any order or direction of the Minister, the
Deputy Minister shall, on receiving a report pursuant to subsec
tion (1) or (2), and where he considers that an inquiry is
warranted, forward a copy of that report and a direction that
an inquiry be held to a senior immigration officer.
Without becoming embroiled in an esoteric debate
as to the nature of the functions exercised by the
Deputy Minister in light of the general purport of
this enactment, I assume that he is exercising
administrative functions and, at a minimum, he
must act fairly. I adopt the observations of Lord
Pearson, who said in Pearlberg v. Varty, [ 1972] 1
W.L.R. 534 (H.L.), at page 547, that:
... where some person or body is entrusted by Parliament with
administrative or executive functions there is no presumption
that compliance with the principles of natural justice is
required, although, as "Parliament is not to be presumed to act
unfairly," the courts may be able in suitable cases (perhaps
always) to imply an obligation to act with fairness.
The opinion of Le Dain J. in Inuit Tapirisat of
Canada v. The Right Honourable Jules Léger,
[1979] 1 F.C. 710 (C.A.), at page 717, is to the
same effect on the duty of an administrative au
thority to act with fairness in the absence of
express procedural provisions:
Procedural fairness, like natural justice, is a common law
requirement that is applied as a matter of statutory interpreta
tion. In the absence of express procedural provisions it must be
found to be impliedly required by the statute. [Emphasis
added.]
Though this decision was reversed by the Supreme
Court, sub nom. Attorney General of Canada v.
Inuit Tapirisat of Canada et al., [1980] 2 S.C.R.
735, the reasoning of Le Dain J. was not ques
tioned. It therefore retains its probative effect.
I accordingly accepted without question that the
Deputy Minister, in exercising the discretion con
ferred on him by the Act, has a duty to act fairly.
The question then is how that duty is to be
exercised.
(5) Content of duty to act fairly
Lord Pearson, again in Pearlberg v. Varty which
I cited abové, set what I would describe as the
upper limit beyond which the duty to act fairly
merges with the principles of natural justice:
Fairness, however, does not necessarily require a plurality of
hearings or representations and counter-representations. If
there were too much elaboration of procedural safeguards,
nothing could be done simply and quickly and cheaply.
Administrative or executive efficiency and economy should not
be too readily sacrificed.
[Page 547.]
This means that, cut off as it is from administra
tive reality and its day-to-day concerns, the Court
cannot and should not hold competent administra
tive authority to procedural constraints that would
reduce its effectiveness and undermine its purpose.
In Inuit Tapirisat of Canada v. The Right Hon
ourable Jules Léger, supra, Le Dain J. said at
page 717:
What is really in issue is what it is appropriate to require of a
particular authority in the way of procedure, given the nature
of the authority, the nature of the power exercised by it, and
the consequences of the power for the individuals affected. The
requirements of fairness must be balanced by the needs of the
administrative process in question.
On the other hand, I entirely agree, as to the
minimum procedural protection that an individual
should be given, with what Lord Denning said in
Schmidt v. Secretary of State for Home Affairs,
[1969] 2 Ch. 149 (C.A.), at page 170:
I quite agree, of course, that where a public officer has power
to deprive a person of his liberty or his property, the general
principle is that it is not to be done without his being given an
opportunity of being heard and of making representations on
his own behalf.
More recently, Lord Denning had occasion to
clarify these observations in Selvarajan v. Race
Relations Board, [1976] 1 All ER 12 (C.A.), at
page 19, as to the obligation of an administrative
body to act fairly:
... that which fairness requires depends on the nature of the
investigation and the consequences which it may have on
persons affected by it. The fundamental rule is that, if a person
may be subjected to pains or penalties, or be exposed to
prosecution or proceedings, or deprived of remedies or redress,
or in some such way adversely affected by the investigation and
report, then he should be told the case made against him and be
afforded a fair opportunity of answering it. The investigating
body is, however, the master of its own procedure. It need not
hold a hearing. It can do everything in writing. It need not
allow lawyers. It need not put every detail of the case against a
man. Suffice it if the broad grounds are given. It need not name
its informants. It can give the substance only.... But, in the
end, the investigating body itself must come to its own decision
and make its own report.
In my view the latter decision, in which the Court
of Appeal found that the investigative body had
acted fairly, bears some similarity to the case at
bar since, like that investigating body, the Deputy
Minister must form an opinion on the charges laid
against the petitioner.
In Nicholson (supra), in which the Court had
before it an application for judicial review by a
constable who had been dismissed before the
expiry of his trial period, without a hearing and
without being told the reasons why he was dis
missed, the late Laskin C.J. found that the appel
lant Nicholson should have been treated fairly and
not in an arbitrary manner. He described the duty
to act fairly toward Nicholson as follows:
In my opinion, the appellant should have been told why his
services were no longer required and given an opportunity,
whether orally or in writing as the Board might determine, to
respond. [Page 328.]
In the case at bar it is not so much a question of
the petitioner knowing the nature of the charges
made against him as of his being able to bring to
the attention of the Deputy Minister, who has the
necessary authority to terminate the proceedings
filed against his person, the special "circum-
stances" of his case.
I therefore conclude that, in view of the
administrative inconvenience which this would
create, a trial-type hearing at this stage of the
proceedings would be very difficult to justify. The
petitioner is of course not challenging the charges
made against him, he is seeking to avoid being
deported to the United States. I consider that the
ends of justice would be well served if the petition
er could at least be given a "paper hearing" by the
Deputy Minister as to the serious threat to his
"right to life" which deportation to the United
States might represent.
Since the person in authority, the Deputy Minis
ter, has not observed the principles of procedural
fairness in exercising his discretion, the direction
which he gave to a senior immigration officer
under subsection 27(3) is null and void.
I therefore consider that it is right and proper in
the circumstances to issue a writ of certiorari to
set aside the direction of the Deputy Minister and
a writ of prohibition to bar the adjudicator from
holding a hearing until the discretion of the
Deputy Minister has been exercised in accordance
with recognized principles of procedural fairness.
Question III
Does an inquiry held pursuant to the Immigration
Act, 1976 violate the rights conferred upon the
petitioner by section 7 of the Charter?
Section 27 and 28 of the Act provide two sepa
rate devices whereby an adjudicator may properly
be seized of jurisdiction to inquire into a matter
under section 32. As both devices have been
invoked in the present case, and as I have just
examined the relationship of the inquiry process
pursuant to section 27 and the common law notion
of fairness, it remains for me to conduct a similar
examination with respect to the process pursuant
to section 28.
As was noted earlier, the decision to cause an
inquiry to be held is a decision of an administrative
nature, and thus the notion of fairness applies.
Included in this notion is the idea that before such
a decision is made, the person who is the subject of
this decision should be given an adequate opportu
nity to state his case. In the present circumstances,
this would demand that the petitioner, at some
stage in the inquiry process prior to a deportation
order being made, should have the chance to
present the special circumstances of his case to a
person who has the authority to consider such
circumstances as being relevant to the decision as
to whether or not an inquiry should be held or a
deportation order should issue against him.
Subsection 32(6) precludes the adjudicator from
considering such a submission in arriving at his
decision, as the petitioner falls within the scope of
the descriptions in paragraphs 19(1)(c),(d),(e),(f)
or (g) and 27(2)(c),(h) or (i). Such a submission
would be equally irrelevant to the decision of the
senior immigration officer, under section 28, to
cause an inquiry to be held. By the terms of section
28, the sole point at issue is whether a person has
been held in detention pursuant to sections
23(3)(a) or 104 for an inquiry; once this fact has
been established, the senior immigration officer is
under a duty to cause an inquiry to be held,
concerning that person, forthwith. He has no au
thority to consider any other circumstance, under
section 28, and the common law notion of fairness,
as an implied procedural obligation, cannot serve
to enlarge the jurisdiction Parliament has seen fit
to confer upon the officer.
As such, unlike section 27, the common law
notion of fairness has been clearly precluded by
Parliament with respect to the inquiry process
pursuant to sections 28 and 32.
Counsel for the petitioner also submitted that
the inquiry process pursuant to sections 28 and
104 denies the petitioner rights which he is entitled
to assert under section 7 of the Canadian Charter
of Rights and Freedoms. Section 7 of the Charter
states that:
7. Everyone has the right to life, liberty and security of the
person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice.
Madam Justice Wilson, of the Supreme Court of
Canada, in the recent case of Singh et al. v.
Minister of Employment and Immigration,
[1985] 1 S.C.R. 177; 58 N.R. 1 [hereinafter
referred to as the Harbhajan Singh case], stated
that she was prepared to accept that the term
"Everyone" in section 7 "includes every human
being who is physically present in Canada and by
virtue of such presence amenable to Canadian
law" (at page 202 S.C.R.; page 49 N.R.). She also
stated, at page 201 S.C.R.; page 48 N.R., that the
Immigration Act, 1976 itself and its administra
tion by the Canadian government are subject to
the provisions of the Charter. As such, the ques
tion in the present case becomes whether the right
which the petitioner seeks to assert falls within the
scope of section 7.
Counsel for the petitioner submitted that the
inquiry process constitutes an impairment of the
petitioner's right to life, liberty and security of the
person in that an inquiry could result in an order
being issued for his deportation, and in that such
order might be executed by deporting him to the
United States where he faces the impending impo
sition of a sentence of death. This impairment, he
argued, constituted a "deprivation" under section
7 and that this deprivation was not, in the circum
stances, in accordance with the principles of fun
damental justice.
Counsel for the Crown sought to counter this
argument. She argued that section 7 of the Chart
er affords individuals protection from the action of
the legislatures and governments in Canada and its
provinces and territories, but that it affords no
protection against the acts of other persons or
foreign governments. In the present case, if an
infringement actually occurred in the future, it
would solely be the result of a sentence of death
imposed by a foreign tribunal. The execution of
the death sentence would not be the direct conse
quence of the holding of the inquiry or the issu
ance of the deportation order, but solely as a result
of the decision of the U.S. authorities following a
sentence validly pronounced to laws in force in
Pennsylvania. In support of this position, she relied
on the decision of Mr. Justice Pratte of the Federal
Court of Appeal in Singh v. Minister of Employ
ment and Immigration, [1983] 2 F.C. 347 [herein-
after referred to as the Sukhwant Singh case],
who said at page 349:
The decision of the [Immigration Appeal] Board did not have
the effect of depriving the applicant of his right to life, liberty
and security of the person. If the applicant is deprived of any of
those rights after his return to his own country, that will be as a
result of the acts of the authorities or of other persons of that
country, not as a direct result of the decision of the Board. In
our view, the deprivation of rights referred to in section 7 refers
to a deprivation of rights by Canadian authorities applying
Canadian laws.
This same passage was quoted by Madam Justice
Wilson when she was summarizing the arguments
of counsel for the Crown in Harbhajan Singh,
supra, on a similar point. In that case the actual
physical threat to the appellants was in India and
not in Canada. Nevertheless, Madam Justice
Wilson found that the appellants' section 7 rights
had been infringed and granted them relief under
the Charter. In rejecting the Crown's argument
based on Sukhwant Singh, she did not specifically
express doubt as to the validity of the position
taken by Mr. Justice Pratte. However, Madam
Justice Wilson's position is at odds with that
adopted by the latter, and thus must be considered
to strongly imply that the passage quoted can no
longer be considered to be good law.
As was the case in Harbhajan Singh, the
present petitioner faces a threat to his physical
well-being in a foreign country. In both cases,
however, it is the Canadian authorities which are
alleged to be in breach of section 7 by forcing
persons in Canada to return to such foreign coun
tries by use of a process which denies such persons
fundamental justice. This is not the same thing as
saying that the Charter is binding upon foreign
governments or persons in foreign countries.
In R. v. Operation Dismantle Inc., [1983] 1
F.C. 745, Mr. Justice Marceau of the Federal
Court of Appeal articulated a "single right" theory
with respect to section 7 of the Charter. Upon this
analysis, the words "right to life, liberty and secu
rity of the person" form a single right with closely
inter-related parts and this right relates to matters
of death, arrest, detention, physical liberty and
physical punishment of the person. Moreover, sec
tion 7 only protects persons against the deprivation
of that type of right if the deprivation results from
a violation of the principles of fundamental justice.
The "single right" theory was considered by the
Supreme Court of Canada in Harbhajan Singh
and in the Operation Dismantle appeal [Operation
Dismantle Inc. et al. v. The Queen et al., [1985] 1
S.C.R. 441]. In neither case was it necessary for
Madam Justice Wilson to decide whether this
theory represented the correct method of interpret
ing section 7; however, she did discuss the applica
tion of the theory at some length, especially in the
former case. In that case she stated, at pages
204-205 S.C.R.; page 52 N.R.:
Even if we accept the "single right" theory advanced by counsel
for the Minister in interpreting s. 7, I think we must recognize
that the "right" which is articulated in s. 7 has three elements:
life, liberty and security of the person. As I understand the
"single right" theory, it is not suggested that there must be a
deprivation of all three of these elements before an individual is
deprived of his "right" under s. 7. In other words, I believe that
it is consistent with the "single right" theory advanced by
counsel to suggest that a deprivation of the appellants' "securi-
ty of the person", for example, would constitute a deprivation
of their "right" under s. 7, whether or not it can also be said
that they have been deprived of their lives or liberty. Rather, as
I understand it, the "single right" theory is advanced in support
of a narrow construction of the words "life", "liberty" and
"security of the person" as different aspects of a single concept
rather than as separate concepts each of which must be con
strued independently.
And later, at page 205 S.C.R.; page 53 N.R.:
... it seems to me that it is incumbent upon the Court to give
meaning to each of the elements, life, liberty and security of the
person, which make up the "right" contained in s. 7.
If the present petitioner is deported to the United
States, he would be exposed to the threat of death
and physical punishment. Thus his right to "life,
liberty and security of the person" would be affect
ed and impaired. But does this impairment consti
tute a "deprivation" under section 7? As counsel
for the Crown has pointed out, the inquiry process
under the Act and the possible issuance of a
deportation order do not per se deprive the peti
tioner of the right to life or liberty—it may result
in his being deprived of life or liberty by others,
but it is not certain that this will happen. In my
opinion, however, it does constitute a deprivation
of his security of the person. As Madam Justice
Wilson stated at page 207 S.C.R.; page 55 N.R.:
... "security of the person" must encompass freedom from the
threat of physical punishment or suffering as well as freedom
from such punishment itself.
In the present circumstances, whereas the petition
er faces the threat of a death sentence being
executed against him if he returns to the United
States, and whereas the holding of the inquiry may
result in an order being issued which might be
executed towards the United States, the inquiry
itself represents an impairment of his right to
security of the person. I believe that such an
infringement must be considered to amount to a
deprivation of the right to "security of the person"
within the meaning of section 7—given the poten
tial consequences of the petitioner's removal to the
United States, it would be unthinkable that the
Charter would not apply to entitle him to funda
mental justice in the process which might lead to
such removal.
My task therefore becomes to determine what
fundamental justice requires in the present circum
stances, and whether the inquiry process under the
Act meets this standard. It seems clear (see the
remarks of Madam Justice Wilson at page 212
S.C.R.; page 62 N.R. of Harbhajan Singh, supra)
that, at the minimum, the concept of fundamental
justice as it appears in the Charter includes the
notion of procedural fairness as articulated by
Chief Justice Fauteux in Duke v. The Queen,
[1972] S.C.R. 917, at page 923:
Under s. 2(e) of the Bill of Rights no law of Canada shall be
construed or applied so as to deprive him of "a fair hearing in
accordance with the principles of fundamental justice." With
out attempting to formulate any final definition of those words,
I would take them to mean, generally, that the tribunal which
adjudicates upon his rights must act fairly, in good faith,
without bias and in a judicial temper, and must give to him the
opportunity adequately to state his case.
Do the procedures as set out in the Act provide
an adequate opportunity for the person who is the
subject of an inquiry to state his case and know the
case he has to meet? I think not. As was noted
earlier, in the discussion of the legislative frame
work of the inquiry process, when the senior immi-
gration officer, acting under section 28 of the Act,
receives notice that a person is held in detention
pursuant to sections 23(3)(a) or 104, he "shall
forthwith cause [an] inquiry to be held concerning
that person". At the inquiry, because the petitioner
falls within the terms of the exception in subsec
tion 32(6), the sole question in issue before the
adjudicator would be whether the petitioner is a
person described in subsection 27(2). Once this
has been determined in the affirmative, he must
make a deportation order against that person—he
possesses no discretion under paragraph 32(6)(a),
as he normally would, to decide that a deportation
order ought not to be made against the person,
having regard to all the circumstances of the case.
Thus at no stage in this procedure would the
petitioner have the right to present the special
circumstances pertaining in his particular case
before a person having the authority to consider
such circumstances as being relevant to the deci
sion as to whether or not a deportation order
should be made against him. I believe that, as the
inquiry procedure now stands, the petitioner is
denied an adequate opportunity to state his case
and, as such, is denied fundamental justice in the
determination as to whether or not he should be
deported.
In view of this conclusion, it now becomes neces
sary to determine whether the shortcomings of
these procedures in relation to the standards set
out by section 7 constitute reasonable limits which
can be demonstrably justified in a free and demo
cratic society within the meaning of section 1 of
the Charter. Section 1 reads:
1. The Canadian Charter of Rights and Freedoms guaran
tees the rights and freedoms set out in it subject only to such
reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society.
The phrase "demonstrably justified" puts the onus
of justifying a limitation on a right or freedom set
out in the Charter on the party seeking to limit
(Hunter et al. v. Southam Inc., [1984] 2 S.C.R.
145; 55 N.R. 241).
In the present case, therefore, the onus is upon
counsel for the Crown. However, no evidence was
put forward to discharge that onus by showing
that the procedures should be solved under section
1. As such, I must conclude that the Crown has
failed to demonstrate that the procedures set out in
the Act constitute a reasonable limit on the peti
tioner's rights within the meaning of section 1 of
the Charter.
I turn now to the question of the remedy to
which the petitioner is entitled. Subsections 52(1)
and 24(1) of the Charter are both relevant in this
regard. These subsections read:
52. (1) The Constitution of Canada is the supreme law of
Canada, and any law that is inconsistent with the provisions of
the Constitution is, to the extent of the inconsistency, of no
force or effect.
24. (1) Anyone whose rights or freedoms, as guaranteed by
this Charter, have been infringed or denied may apply to a
court of competent jurisdiction to obtain such remedy as the
court considers appropriate and just in the circumstances.
Having determined that the inquiry procedure
pursuant to sections 104 and 32 of the Immigra
tion Act, 1976 is inconsistent with the provisions of
section 7 of the Charter, in that the petitioner is
denied an adequate opportunity to present his case,
subsection 52(1) operates to render that procedure
of no force and effect to the extent of the inconsist
ency. In the present case, fundamental justice
requires that the petitioner be given the opportu
nity to present the special circumstances of his
case before someone who has authority to take
such circumstances into consideration in deciding
whether or not to make a deportation order.
Sections 28 and 32(6) of the Act operate to
gether to deny the petitioner this right. However,
if the exception in subsection 32(6)—that is, the
phrase "other than a person described in para
graph 19(1)(c), (d), (e), (f) or (g) or 27(2)(c), (h)
or (i)"—was of no effect, then the petitioner would
no longer be denied his right. Instead, he would
have the opportunity to present his case fully to
the adjudicator, who would no longer be precluded
from considering, pursuant to paragraph 32(6)(a),
whether or not, having regard to all of the circum
stances (including the threat to his life if he were
to be deported to the United States), a deportation
order should be made. There is no guarantee that
the adjudicator will decide in favour of the peti
tioner and, indeed, the petitioner does not request
such a guarantee; all he requests is the right to be
heard, and this is all fundamental justice demands
in the circumstances.
As such, I find that the petitioner is entitled to a
declaration that the words "other than a person
described in paragraph 19(1)(c), (d), (e), (f) or
(g) or 27(2)(c), (h) or (i)", as they appear in
subsection 32(6) of the Immigration Act, 1976,
are of no force and effect in the case of an inquiry
caused to have been held pursuant to section 28 of
the Act. This is the court of competent jurisdiction
in this matter, and I believe that this declaratory
relief represents the remedy which is appropriate
and just in the present circumstances.
Question IV
Would it be cruel and unusual treatment or pun
ishment to deport the petitioner to a country
where he faces the death penalty?
The petitioner submits that his deportation to
the United States would constitute a violation of
his rights under section 12 of the Charter. Section
12 reads:
12. Everyone has the right not to be subjected to any cruel
and unusual treatment or punishment.
Deportation is a treatment, not a punishment, and
as a norm the execution of a deportation order is
not, per se, cruel and unusual treatment (In re
Gittens, [1983] 1 F.C. 152 (T.D.)). The petitioner
submits, however, that the death sentence which
will be imposed on him if he is returned to the
United States is an additional factor sufficient to
attract the protection of section 12. In essence, his
argument is that it would be cruel and unusual
treatment to deport him to a country (i.e. the
United States) where he faces a punishment which
is cruel and unusual (i.e. the death penalty). As
such, he requests that the Court prohibit his re
moval to the United States.
Counsel for the Crown submitted that it is
unnecessary for me to enter into a discussion of the
merits of the petitioner's argument, as that argu
ment has been raised prematurely. I agree.
The petitioner asks the Court to assume that a
deportation order will be made against him follow
ing the holding of the inquiry, and that such order
will be executed towards the United States. The
Court is also asked to assume that the death
sentence, to be imposed on the petitioner by the
trial judge in Pennsylvania, will be upheld on
appeal in the United States courts.
This is asking the Court to assume too much.
There is no guarantee that any of these events
shall actually take place. The holding of the inqui
ry does not, of itself, subject the petitioner to any
cruel and unusual treatment or punishment.
Therefore I do not believe that section 12 can be
used to prevent such an inquiry from being held.
It may well be that if a deportation order is in
fact issued against the petitioner, he may then
choose to return to court to argue that any decision
to remove him to the United States should be
prevented as it would constitute cruel and unusual
punishment. That would be the proper time for
such a submission to be considered by the Court.
Until such time, however, any such submission
must be rejected as premature.
Question V
What is the impact of Canada's international
treaty obligations on its domestic law?
In his submissions, counsel for the petitioner
makes reference to various international human
rights treaties of which Canada is a signatory.
These references were intended to buttress argu
ments already made rather than to form a sepa
rate, independent argument. He placed particular
emphasis on the United Nations International
Covenant on Civil and Political Rights [Dec. 19,
1966, [1976] Can. T.S. No. 47].
In Operation Dismantle Inc. et al. v. The Queen
et al., supra, Madam Justice Wilson stated at page
484:
The law in relation to treaty-making power was definitively
established for Canada and the rest of the Commonwealth in
Attorney-General for Canada v. Attorney-General for Ontario
(Labour Conventions), [1937] A.C. 326, where Lord Atkin
stated at pp. 347-48:
It will be essential to keep in mind the distinction between
(I.) the formation, and (2.) the performance, of the obliga
tions constituted by a treaty, using that word as comprising
any agreement between two or more sovereign States. Within
the British Empire there is a well-established rule that the
making of a treaty is an executive act, while the performance
of its obligations, if they entail alteration of the existing
domestic law, requires legislative action. Unlike some other
countries, the stipulations of a treaty duly ratified do not
within the Empire, by virtue of the treaty alone, have the
force of law. If the national executive, the government of the
day, decide to incur the obligations of a treaty which involve
alteration of law they have to run the risk of obtaining the
assent of Parliament to the necessary statute or statutes ....
A treaty, therefore, may be in full force and effect interna
tionally without any legislative implementation and, absent
such legislative implementation, it does not form part of the
domestic law of Canada. Legislation is only required if some
alteration in the domestic law is needed for its implementation:
see R. St. J. Macdonald: "The Relationship between Interna
tional Law and Domestic Law in Canada," in Canadian Per
spectives on International Law and Organization (1974), eds.
Macdonald, Morris and Johnston, p. 88.
Canada acceded to the Covenant on May 19,
1976, and it came into force for Canada on August
19, 1976. Article 2 of the Covenant obligates
Canada to adopt measures to give effect to the
rights recognized therein, but no Canadian legisla
tion has been passed which expressly implements
the Covenant. The force and effect of the Cove
nant as a source of domestic legal rights in Canada
is thus limited. However, it remains in force as an
obligation upon Canada under international law
and there is a presumption that Parliament does
not intend to act in violation of Canada's interna
tional obligations. As such, the Covenant may be
used to assist a court in the interpretation of
ambiguous provisions of a domestic statute pro
vided that the domestic statute does not contain
express provisions contrary to or inconsistent with
the Covenant.
In the present case, counsel for the petitioner
sought to use the provisions of the Covenant as an
aid in his argument that any deportation of the
petitioner to the United States would violate sec
tion 12 of the Charter. In view of my conclusion
that counsel's submission with respect to section
12 was premature, it is unnecessary for me to
consider to what extent, if any, the Covenant can
be used to determine the scope of the protection
afforded by that section.
In view of the foregoing, therefore, the petition
er shall be entitled to a writ of certiorari setting
aside the direction of the Deputy Minister pursu
ant to subsection 27(3) of the Act; a writ of
prohibition barring the holding of an inquiry until
the discretion of the Deputy Minister has been
exercised in accordance with recognized principles
of procedural fairness; and a declaration that the
words "other than a person described in paragraph
19(1)(c), (d), (e), (f) or (g) or 27(2)(c), (h) or
(i)", appearing in subsection 32(6) of the Immi
gration Act, 1976, do not apply in connection with
an inquiry instituted pursuant to section 28 of the
Act.
As he has succeeded in his application, except as
regards extradition, the petitioner will be entitled
to his costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.